Legal humor. Seriously.

June 25, 2015

As you likely know by now, the Supreme Court has voted 6-3 to reject a challenge to the Affordable Care Act a.k.a. Obamacare, over a strong dissent by Justice Scalia. The opinion in King v. Burwell involves important issues of federalism, separation of powers, and statutory interpretation, but most importantly it is the first time the phrases "pure applesauce" and "jiggery-pokery" have been used in any Supreme Court opinion.

What's that? You're more interested in federalism? Wow, are you in the wrong place.

The use of "pure applesauce" to mean "nonsense," as Scalia uses it, was new to me but does show up in the Google Books database. A completely unscientific eyeballing of those results suggests it was most popular, if "popular" is the right word, during the last century. In this biography of P.G. Wodehouse, for example, the author mentions it as an example of the "Pooterish Edwardian slang" Wodehouse used in the 1910 book Psmith in the City, along with "perfect rot" and "give me the pip" (to irritate). In 1970, Time magazine described an author as "a colloidal suspension of William Buckley, William Blake and Herbert Marcuse in pure applesauce," which was not at all a compliment, but in the last few decades "pure applesauce" has generally been used to mean just pure applesauce.

So, I don't know who had a problem with applesauce to begin with, but there is literary precedent for Scalia's use of the term in this way. But it hasn't been used in a U.S. court opinion, so far as I can tell.

"Jiggery-pokery" is slightly more common. It's actually listed in the Oxford English Dictionary, defined as a colloquial term (originally Scottish) for "deceitful or dishonest manipulation; hocus-pocus, humbug." It shows up in just one other U.S. opinion (according to Google Scholar), which not too surprisingly was written by Judge Selya of the First Circuit. That's not too surprising because Judge Selya, though a perfectly good judge otherwise, seems to have a form of Tourette's that forces him to use the most arcane terms he can possibly find.

In the same opinion where he uses "jiggery-pokery," for example—just in this one opinion—he uses "eschatocol," "exegetic," "peregrination," "imbrication," "anent" (x2), "independentista" (x3), "spavined," "underbrace," "asseverate," and "jeremiad." He has said he does this to make his opinions more "interesting," but personally I think that's pure applesauce and it gives me the pip. Legal writing is hard enough to read without sending people to the dictionary every other paragraph.

Also originally Scottish, it turns out, is "argle-bargle," which Scalia used a couple of years ago to describe Justice Kennedy's opinion on the Defense of Marriage Act. SeeUnited States v. Windsor, 133 S. Ct. 2675, 2710 (2013) (Scalia, J., dissenting; criticizing the "disappearing trail of its legalistic argle-bargle"). Here he was on slightly firmer ground: I found three previous uses of that term in case law (and two others after Windsor). Interestingly, all three are in opinions by the same court, the first two written by the same judge (not Selya). See, e.g., Mech v. Hearst Corp., 496 A.2d 1099, 1099 (Md. Ct. App. 1985) (beginning, "This argle-bargle was precipitated by these facts."). The last of the three starts the same way, perhaps in tribute. See Oakhampton Ass'n, Inc. v. Reeve, 637 A.2d 879, 879 (Md. Ct. App. 1994) (noting that the term comes "from the Scotch—argy-bargy, to argue, wrangle, haggle"). The OED confirms that, by the way, as well as the dismissive connotation.

Finally, as you can see from this Google Ngram, none of these terms have been especially prevalent in literature, but their use has been generally declining. I have no idea what caused the spike in "argle-bargle" during the 1990s. Maybe somebody who was using "jiggery-pokery" decided he liked "argle-bargle" instead?

June 24, 2015

On Monday, the Supreme Court held in Kimble v. Marvel Entertainment that a patent holder can't charge royalties for using an invention after the patent term expires. More accurately, it established that rule in a 1964 case, and held Monday that it wasn't going to change the rule even though it's been criticized. Patents last 20 years, but critics ask why parties shouldn't be able to make a deal that lasts longer if they want to. For example, if it would take many years to get the thing to market, that deal might make sense.

The majority decided not to change the rule because of stare decisis, which is Latin for "keep staring at that decision 'cause we ain't changing it now." Or, Justice Kagan put it a little more formally, "an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent." For one thing, she wrote, we were interpreting a statute and so anybody who disagrees can always "take their objections across the street." (There are a couple of bars that are almost literally across the street, but it turns out she was talking about Congress.) The dissenters argued that the 1964 ruling was more judicial policymaking than statutory interpretation. If the Court shouldn't have done it to begin with, they said, it's not a big deal to undo it now. But that only got three votes.

The interesting thing about the case, of course, is that it involved Spider-Man.

The parties were fighting over Stephen Kimble's 1990 invention that, according to the patent, "makes it possible for a player to act like a spider person by shooting webs from the palm of his or her hand." Turns out this was not an entirely new idea, as at least one "spider person"—a spider-man, in fact—had existed in comic-book form since 1962. Maybe for that reason, Marvel felt entitled to design and market a web glove of its own. But drawing one and inventing a real one are two different things, and Kimble sued Marvel in 1997 for patent infringement. It later agreed to buy the patent for half a million bucks plus a 3% royalty on future sales—forever. The contract did not have an end date, even though the patent term did. Apparently neither party was aware at the time that because of the 1964 decision, the law didn't allow Kimble to collect royalties past the 20-year mark. "But Marvel must have been pleased to learn" of that decision, Justice Kagan wrote. It was pleased again this week.

As usual, Justice Kagan's opinion is really well-written, and includes some not-too-veiled Spider-Man references, such as referring to a "superpowered form of stare decisis," the effect on an existing "web of precedents," and reasons for "sticking with" existing precedent. (Justice Alito used the term "super-duper" in his dissent, but I'm not sure he was trying to be funny.) Better in my view is the bit in the conclusion where she points out that although the Court has power to change the law, "stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: 'Spider-Man,' p. 13 ('[I]n this world, with great power there must also come—great responsibility')." Nicely done.

I assume Spidey was only there to make sure nobody was claiming he had to pay royalties on something he's been doing for more than fifty years now. D.C. is not the best city for him to operate in, though, because there are no tall buildings. Did he take the bus in as Peter Parker?

Art Lien kindly granted permission to re-post his sketch. He's been sketching the courts since 1976, mostly covering the Supreme Court for NBC News. You can see lots of other cool drawings and buy prints at his website, courtartist.com.

As you may recall (and if not, by all means see below), the Royals argued that the "assumption of risk" defense should apply because the mascot-powered hot-dog "toss" is now "an activity so intimately interwined with Royals baseball" that someone who goes to a Royals game assumes the risk that a guy in a lion suit will launch a dog into his eye socket. The trial judge refused to grant summary judgment, but did instruct the jury on the defense, and the jury found in the team's favor (though not necessarily because it bought that argument).

The Missouri Court of Appeal held that the instruction should not have been given because "the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game." The Missouri Supreme Court later affirmed that holding and sent the case back to the trial court, a result I accurately predicted although for some reason I don't seem to have mentioned that until now.

In the second trial, Sluggerrr (presumably not in costume, but if so, please send pictures) admitted on the stand that his boss had asked to see "more arc" on some of his throws, and also that he propelled this particular dog with a "no-look, behind the back" throw. Still, the jury ultimately found neither Sluggerrr nor the Royals were at fault (it also assigned no fault to the plaintiff).

That verdict is a little strange, since the jury would not have been instructed on assumption of risk, which is a complete defense when available. If it's not available, then the jury is supposed to assign percentages of fault (i.e. if the defendant is 10% at fault then it pays 10% of the damages) and it seems like Sluggerrr/the Royals were at least a little at fault here. A no-liability finding means that either the jury found a failure to prove proximate cause, which seems very unlikely, or that it just refused to assign any fault to the Royals, which would be effectively the same result as the rejected assumption-of-risk defense. As long as it was properly instructed, though, I think the jury is entitled to do that.

Whether for that reason or just out of sheer exhaustion, the plaintiff told the Kansas City Star that he did not intend to appeal. If he sticks to that, it would finally bring this long-running legal drama to an end.

June 23, 2015

We don't know whether the victim in this case was arguing for or against the value of higher education, but I will go ahead and speculate that it was the former. Not that I think more education makes people less violent, but there really only seem like two options here:

"Dude, you don't even have a college degree." <stabbed>

"Dude, you go to college." <stabbed>

Well, now that I say that, here are two more:

"Dude, you don't even have a college degree." <stabbed>

"Dude, you borrowed $100k to go to college, and you still don't have a job." <stabbed>

I guess we just don't have enough information to say.

At last report, the victim had been treated for a "fairly large laceration" at George Washington University Hospital, and his knife-wielding debate opponent was still at large.

June 22, 2015

How many times does it have to be said? Lasers don't kill people, sharks with frickin' laser beams attached to their heads kill people. That doesn't make the laser evil.

Only partly evil (Image: New Line Cinema)

Wait, did someone argue that a laser is inherently evil? Yep. Might it have been the United States government? Yep.

Of course, the government has lots of lasers itself, and is desperately trying to make some that can actually be used to kill people and melt things. (You may be remembering those laser-equipped 747s that were supposed to shoot down missiles. Didn't work, we learned $5.3 billion later. But they'll get it right this time.) So it may seem odd that it would argue in court that lasers are "insidious instruments normally used for criminal purposes," and that possessing them is "indicative of a readiness to do evil." Why would it say that?